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cannot use cell phone location data as evidence in a criminal proceeding without first obtaining a warrant

So they can't use the tracking data as evidence, but if they use the tracking data to find it where you are, and then sent out some agents to see what you were up to, and found other incriminating evidence, they could present that evidence in court. They could always just say they happened to be in the area. Just the data of you being somewhere probably wouldn't be compelling evidence on it's own anyway, so there probably isn't much of a need to present your cell phone location as evidence if they have real evidence anyway.

The illegal evidence still isn't used. They use the legal evidence obtained afterwards.

Which they only gathered initially after using the stuff without probable cause or legal means.

Parellel construction is the fruit of the poisonous tree, because the starting point of the investigation begins with "we have this, we're not legally allowed to have it, but what can we dig up to make it look like we got this legally?".

As far as I'm concerned, it's essentially a legal strategy to allow perjury.

If they had legally obtained information based on probable cause, there would be no issue. What they end up with is something else.

The Supreme Court has already ok'd anonymous tips to police as grounds for stopping a searching without a warrant. So what happens is that they track you illegally, someone calls in an anonymous tip and you are arrested with the contraband they already know you have.

So while the constant tracking is illegal and can't be entered into court records, they will still do it. If you haven't noticed, police departments across the country are acting more like the DOD everyday. They classify things as secret and inaccessible to FOIA requests. When parts of the machinery get close to disclosure, the Feds come in and swoop it away, like what happened recently with the cell tracking device usage records.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial.

The problem would be probable cause. If they could show the agents were patrolling the area and noticed something sketchy going on, without having that data, then they may be able to do that. If they say they were there to just see what you are doing then no.

"There were anonymous reports of possible robbery attempts by someone matching your physical description." Done. Once the police allow themselves to lie, a plausible and court-accepted lie is not hard to come up with.

No, this just means that if they catch anything on you when they're monitoring everything you do, then they need to:

a) Get a retroactive warrant, which the FISA Court will happily provide them with no questions asked, orb) Trump up some fake charges and detain you indefinitely, orc) Fuck it, the first two are too hard, just send in a drone strike.

> b) Trump up some fake charges and detain you indefinitely, or> c) Fuck it, the first two are too hard, just send in a drone strike.

Why is it too hard? If they can detain you indefinitely without trial then it doesn't matter what the actual charges are since the court is where they get evaluated. It is an expression that is never evaluated. Its the if clause after the return statement.

Right because they really care about what amounts to pocket change. Never mind that they like to "create jobs". The cost of incarcerating....er I mean "detaining" you the rest of your life will cost them less than buying a single plane that they have no intention to ever fly, and they have fields FULL of those.

The court declared that it's a violation of your fourth amendment rights if they present warrentless cellphone location data in court. Apparently the fourth amendment is just fine with them collecting that data so long as they don't use it in court, because using information in court is what a search is all about.

The difference is now that there's an explicit ruling, anyone doing so can't cry about the lack of clarity. Someone would have to take the fall. Sure, cops violate personal residences without warrants all the time and probably even listen in on phone calls, but that evidence is inadmissible and grounds for getting a case thrown out and convictions overturned. I'm not naive enough to expect this ruling to be followed absolutely, but anyone who violates it knows that either they or a lackey is going down.

They actually have a name for it now, "Parallel Construction". Its where they use illegal evidence to locate a suspect/evidence, then they use some excuse (traffic stop, low level crime, etc) to search the suspect, and then lie/"forget" about where the initial information came from. An example is using illegal phone, email or internet taps to find a suspected drug runner, then pulling over that person when they're out driving to search their car for any evidence.

But when Obama came into office, government institutions that had gone rogue and off practices allowed by the U.S. constitution had to fear that a constitutional scholar would rein them in.

So they were divided and fearful.

Now they are united and reckless.

It's similar to the transition from the Weimar Republic to the Third Reich. There were conflicting interests while president Hindenburg was still alive and more than one force in power. When there was only one and gave the goahead, all the bad guys united

A President cannot control what everyone in the Executive Branch does. A public statement could change military operation, since he in CiC. But he is not going to tell the FBI, CIA, NSA, IRS, EPA,or any other group what they can't do, unless they tend to agree already.

One person cannot change how the branch operates. They have their own mandates and charter and whatnot to determine what they do, but laws restrict how they do it.

Method is determined by a legal opinion stating something is legal, and Presiden

You do realize that the President is the Chief Executive, the head of the Executive branch of government. That is the president's primary role, even before that of Commander in Chief. While it is true that he cannot "control what everyone in the Executive Branch does" it is his job to set and communicate the guidelines for how they do their job.--JimFive

I do realize that the President is Chief Executive, but bound by the powers granted him. He is bound Constitutionally by this oath: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

If by "faithfully" you mean that anything he asks of the Executive branch is automatically okay, a

The OP was lying through his teeth. Of course, you and he are probably so sucked up into the wacko Fox News alternate universe that all of that goes right over your heads.

ORLY?

When are the statutory-mandated Obamacare mandates going into effect?

The President is also required by law to give 30 days notice before releasing someone from Gitmo. That Rush Limbaugh dittohead and right-wing whacko Dianne Feinstein says that didn't happen [nationaljournal.com]. (Hint for your addled brain: characterizing Feinstein as a "dittohead" and "whacko" is called "sarcasm".)

IANAL by a very long shot, so let me ask a bunch of others who think they are;)

If someone charged with a crime is eventually convicted on appeal, even when the law was unclear to start out with, that person is treated as though he should have always been able to anticipate the court's eventual decision.

Does that logic not apply here as well? Can't everyone who was once convicted in trials where this kind of evidence was used, appeal their conviction now?

Not really; the exclusionary principle is based on the premise that the courts will punish law enforcement for knowingly evading their constitutional responsiblities by not letting them use whatever evidence they wrongfully obtained. Until binding precedential caselaw is established, law enforcement can be considered to not have known they were required to get a warrant before, so any evidence before that point would not be excluded.

For example, the cops generally need a warrant to enter your house to search for drugs unless an owner grants permission to the search. If you're staying over at my house while I'm away, the cops ask you for permission to search the place thinking it is your house, and you say yes, anything they find is admissible because they had a good faith belief they were conducting a legal search.

Well unlawful searches would be a violation to due process, the question then becomes what's the remedy for that? I think we're so used to the evidence exclusion rule that we tend not to realize that's just one way to "fix" the problem. You can do criminal charges against the police, or you can do civil damages.

The counterargument against excluding evidence is: you committed a crime; this evidence shows it. Why should you get off just because the police did something wrong? That didn't magically make

If you're staying over at my house while I'm away, the cops ask you for permission to search the place thinking it is your house, and you say yes, anything they find is admissible because they had a good faith belief they were conducting a legal search.

A while back, I left my house and accidentally left my overhead garage door open. The door that leads from my garage to my house is usually unlocked, and it was that day. When I didn't return for a couple hours, my neighbor across the street grew concerned an

knowing the crime rate in my area, I would prefer to accept the risk of criminal intrusion than the violation of privacy.

The police weren't interested in "criminal intrusion", they were doing what is called a welfare check. Your neighbor saw something odd, something you'd never do normally, and called the cops to come check on you.

There are stories every so often of a reclusive person being found dead, one I recall was after six months, in their house. They die and nobody notices that there isn't any activity. You could have opened the door, gone back inside to get something you forgot, and then had a stroke.

Suppose a person in such a situation posted a sign on the door from the garage to the house that said, "Notice By Owner: I do not consent to any searches of these premises for any reason."

The police weren't interested in "criminal intrusion", they were doing what is called a welfare check.

No they weren't. I talked to my neighbor, I know what she said to the police, and I recounted my story correctly. She is a LEO also, so she knows exactly what she said to them, and exactly what their interpretation was.

Why is it an issue that your neighbors care enough about you to call the cops when they see something highly unusual taking place and want someone to check on your welfare?

I don't think there's much that can be done as a preventive measure, though I guess since a lot of these cases hinge on really close questions about whether a search was reasonable it's possible. You'd have to make it super specific I'd think, maybe something like:
"No trespassing. This specifically includes law enforcement; the owner does not and never will give consent for law enforcement to search or enter these premises for any reason whatsoever. Anyone giving such consent is not the owner and is no

If you're staying over at my house while I'm away, the cops ask you for permission to search the place thinking it is your house, and you say yes, anything they find is admissible because they had a good faith belief they were conducting a legal search.

[Citation Needed]

Someone who is not "in control" of the property can not legally consent to a search of the premises.Minors cannot give consent. A roomate can only consent to a search of common areas, but not your space(s).If you refuse to consent, the police can not get consent from someone else.See: FERNANDEZ v. CALIFORNIA

Anything illegal belonging to you will be suppressed.On the other hand, anything that belongs to the guest is fair game, since they consented.

Uh....Fernandez v. California says the opposite of what you're saying. In it the Supreme Court held that even though one occupant had denied police entry, that after he had been arrested and moved away from the premises the other occupant could consent to a search. Only where one occupant is physically present and denying access are the police prevented from searching.

In any event, my hypothetical was more akin to Illinois v. Rodriguez, where the Court held that as long as the police had a reasonable be

By the way, I just glanced at the opinion and the stuff I say above applies to THIS case. Despite ruling it a fourth amendment violation the court let the conviction stand precisely because the police had a good faith belief they were not violating the fourth amendment.

By the way, I just glanced at the opinion and the stuff I say above applies to THIS case. Despite ruling it a fourth amendment violation the court let the conviction stand precisely because the police had a good faith belief they were not violating the fourth amendment.

I can understand why ignorance of the law might save them from judicially imposed sanctions in past and present cases. But good faith does nothing to make the past use of such evidence legal, does it?

Well the exclusionary principle isn't enshrined in law, or even considered a Constitutional requirement, it's just a policy decision the Courts have made to keep the police in line. Theoretically they could get rid of it tomorrow and offer a different remedy for an unlawful search (like lawsuits for damages). Once there's no deterrent effect (like where the cops don't know it's illegal, or at least can show that) the Court discards it as essentially useless.

How many police departments have had to remind their officers that they do not have the legal authority to delete images off your cell phone, or that filming them isn't illegal?

Increasingly, police believe the law is whatever they say it means. And they will abuse the law to make sure that's the case.

Because, when you tell them they aren't allowed to delete the images off your phone and you protest, they will slap you with resisting arrest -- despite the fact that you weren't being arrested, nor were you breaking the law, they were.

Quartavious Davis, the plaintiff arguing for tracking privacy, was convicted of a first offense [huffingtonpost.com] for a string of robberies and sentenced to 162 years in prison based largely on testimony from acquaintences. Davis is facing nothing short of biblical retribution for ever having dared to transgress against the law in the peoples republic of florida based 'mandatory minimums' and the court is basically saying "yes, police cannot use your cellphone to track you but we still have enough evidence anyway so fuck off and die in prison kthx"

Davis was convicted of participating in a string of armed robberies in the Miami area in 2010. His accomplices testified against him, saying he carried a gun during their crimes and discharged it at a dog that chased them after one of their burglaries.

On Feb. 9 of this year he was convicted of committing seven armed robberies at fast-food restaurants, a Walgreens pharmacy and other commercial establishments in the Miami area from August to October of 2010.

So essentially, he decided to carry a deadly weapon, and stick said weapon in the face of some teenage cashier at Wendy's, so he could make off with the <$100 that was in the drawer at the time. And we're supposed to feel sorry for him? Here's two hints:

Don't commit felonies.

If you must break Rule #1, don't carry a damned firearm while doing so.

Seven different armed robberies justifies the length of the sentence. That's seven separate violent acts, seven chances for some innocent working stiff to get shot over a lousy $100, if not less than that.

Just how many times do you think a person should get to stick a firearm in someone's face before they go away forever?

No, I don't think that someone should stay in prison forever just because they were idiots at some point in their life. If they do it again and again after getting out of prison, you may have a point, but people do change, and I don't think they should stay in prison forever just because they committed a series of crimes at a point in their life where they may just be a screw up. Put them in prison and attempt to rehabilitate them (Which is what our 'justice' system should focus on to begin with.).

I don't think that someone should stay in prison forever just because they were idiots at some point in their life.

Sticking a firearm in someone's face on seven different occasions is a bit more serious than being an idiot at "some point" in your life. Do you have any comprehension of the fact that we're talking about someone who threatened to kill people if he didn't get what he wanted? And that he did it on at least seven different occasions? This isn't some stupid kid that took the neighbors car for a joyride. This is a violent sociopath who needs to be removed from society and put into a cage where he can't do a

Sticking a firearm in someone's face on seven different occasions is a bit more serious than being an idiot at "some point" in your life.

That depends on how you define "idiot."

But that's irrelevant, because we shouldn't be Tough On Crime to begin with; we should be focusing on rehabilitation, regardless of whether they robbed, murdered, or raped people. If they're rehabilitated, or they're strongly believed to be, they should get out (unless they've proven that they can't be and are able to fool everyone). Static sentencing like this is just moronic/

This is a violent sociopath who needs to be removed from society and put into a cage where he can't do any further damage.

Not everyone who commits violent crimes is necessarily a sociopath, though it's certainly con

Is there any evidence that he doesn't or won't feel guilty, or that he's incapable of it? Quite a subjective matter, here.

The evidence that he doesn't feel guilty is that he kept on doing it.

Look, I agree that we don't know whether this guy's a sociopath, but we do know he is a repeat violent offender.

I don't really have a good notion of what to do with people like this. Honestly. I kind of suspect that prison is ineffective as a deterrent beyond a relatively short time -- almost nothing is going to be worth 10 years, for example. Clearly this guy wasn't deterred, though he might not have believed he'd be imprisoned for lif

FISA is strictly a federal warrant court. Local police and prosecutions don't use it. This ruling applies principally to local police conduct and evidence, secondarily to federal police conduct and evidence.

Yes, the FBI could still rely on FISA's rubber stamp. But county mounties can't. And it's the sheer number of the latter which pose the greater threat.

The tracking is done by Federal agencies [slashdot.org] on behalf of local law enforcement. In practice, the Federal agency 'deputizes' the local LE official doing the actual work. So they are covered by FISA, the Patriot Act and other federal law.

The key take away is that they can no longer use this information as evidence in court. The government will still use this information to track you; but they will need to get more creative when they do parallel reconstruction.

"The Government Can No Longer Track Your Cell Phone Without a Warrant"

The headline is slightly inaccurate. It should read:

"The Government Can No Longer Legally Track Your Cell Phone Without a Warrant"

But since history demonstrates conclusively that the government couldn't care less about staying within the law, that makes very little difference. It most certainly can track your cell phone without a warrant, it most probably does so, and you would be most unwise to assume it isn't doing so.

So the secret courts will issue broad secret warrants with attached gag orders saying that for National Security purposes all cell phones will be tracked and the tracking information made available to certain government agencies. Achievement Unlocked! Problem Solved!

They can still virtually follow you, build a case, use the information to connect you to others, use it to indicate where to look for other evidence, etc. The location data just can't be admitted as "evidence", doesn't mean they can't and won't continue to use the information otherwise.
Small incremental progress, but definitely not a full block on use of the data.

You can put your phone in "airplane" mode and that will shut off all ability to track your phone. If your a "criminal mastermind" you would think that turning off your phones mobile access might be step #1.

The 'government agencies' that we're concerned about the most don't give a flying fuck about what 'courts' or 'judges' have to say, they're going to do whatever the hell they want to do, regardless; that's the nature of organizations who deal in 'secret' things, and it's the nature of the cancer that plagues our current government.

Now, the question is: What should we use as chemo to cure this cancer?

If you're going to advocate civil disobedience on the level of outright violence you could at least put your name to it you goddamn pussy. Nobody is going to put their necks on the line when you're clearly not willing to yourself.

Well, that's too bad, because I for one am not in the possession of fourth amendment protections. So as much as I think this is a wise and important verdict - irrespective of all the poisonous trees and parallel constructions - the US to me represents a clear and present danger to my privacy and my liberty.

It's overrun with ACs high-fiving each other. The character of this website is gone now. I don't know what happened or exactly when it happened, but this isn't the same place anymore. I've been a poster for going on 15 years and I found myself leaving for a bit a few weeks ago. I think I might be done for good now. Really sad to see what happened here. I just wish I knew where everyone else went...

Um, no. It's a Federal Court and sets precedence, that is unless overruled in the future by another Federal Court, that is binding in other cases similar to this one. As another poster pointed out it will probably make its way to the Supreme Court and could change from there. In the meantime this applies to the whole country.

Nope, it IS only binding in the Eleventh Circuit. One of the reasons cases get to the Supreme Court is because there's a circuit split; some circuits go one way, some go the other, and the SC decides which should apply to the whole country.

Well no, not exactly. I didn't word it very well but when I said "overruled by another Federal Court" I meant that another circuit can decide differently. And sometimes they do; but they need to provide a new decision and explain why their interpretation is more correct than what they are overriding. And overriding previous precedence isn't something other Federal circuits do lightly so unless they are willing to do so this is binding on future cases similar to this one.

It's only once one circuit disagrees that this needs to be appealed upwards, until than all Federal Circuits will look to this decision when making similar decisions.

Well IAAL (in the 11th circuit even) so I tend to get a little OCD about legal terms. You're right it has precedential value in other circuits and any court addressing the issue will take this case seriously, though circuits frequently do just explicitly disagree with other circuits so I'd be more comfortable once this gets to the Supreme Court.

To be precise, this ruling established a binding precedent in the 11th circuit and a persuasive precedent elsewhere in the country, correct?

My understanding is that given a binding precedent a circuit judge must explain why the precedent does not apply to the facts in order to rule contrary, and that given a persuasive precedent the judge merely needs to explain (in some detail) why the precedent is in error. Is that right?

I believe that this is a split from the 5th Circuit who ruled warrants are not required for this data because 3rd party doctrine. It can''t be a search of your private information because it isn't your information, it is Verizon's or AT&T or Sprint. It is about you, but it isn't yours.

Thereby increasing the likelihood that this will eventually make its way to the Supreme Court

It may be time for the Supreme Court to address this issue directly. But they ruled just a few years ago that pager records d

You're not splitting hairs; these things matter to the courts. The terms you're looking for here are:* Precedent -- an older court decision that can be cited for similar logic or analogy (doesn't mean courts have to follow it)* Binding - a decision the court must follow* Persuasive - a decision the court can follow* Distinguish - finding a conceptual difference between the case at hand, and an older precedent. Possibly the judges want to write new law, or possibly they just don't want to follow binding pre

Either way, there's a precedent. I've kept location services off on my phone, and now I've turned them on. I realize GOOG or others might use them, but the convenience factor has tipped the scales for me, for now.

The fourth amendment, and the whole Constitution, specifies what the GOVERNMENT may and may not do. It doesn't say anything about whether or not you carry a tracking device that discloses your location to AT&T, or what AT&T may do. Other laws cover those topics. Since the fourth is a restriction on the government, the relevant fact is that the government obtained the information.